Editorial

October 01, 1999

Dubious confession

Detective did his job, but justice didn't follow

Picture the scene: A veteran Hampton police investigator, 22 years on the force, has a scared teen-ager on the cop's turf. In the interrogation room at police headquarters, Edgar Browning is pressing, cajoling 15-year-old Ricky Cullipher to "just tell the truth." He's "playing" Ricky, as the interrogators say - in the sense that reeling him in will follow. After an hour-and-a-half of denials, Browning has persuaded Ricky's dad to leave the room.

Who would you bet wins this encounter?

When Browning "flips" Ricky and gets the teen to confess to shooting a friend, the detective believes he's got his man, or in this case, boy.

Except, maybe this time the cop's wrong. Maybe he played the teen-ager so well, so long, that Ricky just said what he knew Browning wanted to hear.

Police and prosecutors say no one ever confesses to something he didn't do. But experts in juvenile justice and psychology say it's all too common. The power in the interrogation room is all on the adult's side, to say nothing of the detective's skill, and the outcome can be an irrational admission of guilt. The key word is irrational - the kid is no longer thinking straight.

As the investigative series that continues today on our front page makes very clear, many things went wrong in Ricky's case. Chief among those failures were an inept, possibly impaired, defense attorney and a complacent judge.

So let's be clear: Detective Sgt. Edgar Browning did his job. And did it well.

Carefully using the leeway that the courts give to investigators, this subtle and determined interrogator got the confession he was after. Police are even allowed to lie to suspects, as it appears Browning did by telling Ricky and his father that other witnesses had accused him. But Browning was playing by the rules - rules that recognize the tough task police face trying to crack crime.

Those rules, though, assume that any excesses by the police can be overcome by other protections in the system, namely the advocacy of a competent lawyer and the attention of a concerned judge.

So let's be clear again: Had defense attorney George L. Smith Jr. done his job, and had Hampton Circuit Judge William C. Andrews III done his job, Ricky wouldn't be in prison today.

Smith should have fought the confession, which he never did. He could have highlighted inconsistencies between the statement Ricky gave immediately after the 1996 shooting - that Danny Caldwell shot himself - and the tortured mea culpa that Ricky made months later. Smith could have pointed out that all the eyewitnesses tabbed Danny as the shooter. He could have quizzed Browning about why he believed Ricky's second statement was so much more believable than his first. He could have tried to disallow the confession on Ricky's claim that Browning said he didn't need a lawyer during the interrogation.

As for Andrews, he should have recognized the utter failure of Smith to represent Ricky, and intervened in the interest of justice. That's especially true because Andrews should have known that the Hampton judges had forced Smith into a substance-abuse treatment program, so he should have been especially vigilant about Smith's performance. But, substance abuse or not, Andrews should have intervened if any lawyer had turned in so incoherent a defense in his courtroom.

The law recognizes that certain citizens are more vulnerable than others and provides specific protections for them. In the well-known Miranda decision in 1966, the Supreme Court recognized that citizens unaware of their right to an attorney or their right against self-incrimination need to be told about what are now commonly recognized as their "Miranda rights." In the earlier and equally groundbreaking Gideon decision, the court established the principle that poverty should not deny a citizen the right to an attorney. It created the system by which the state provides a lawyer for felony defendants who cannot hire their own.

What happened in Ricky's case?

Before the interrogation began, Ricky's father says, he asked Browning whether he needed to get his son a lawyer. Rick Cullipher Sr. says the detective told him, "We didn't need one as long as Ricky tells the truth." Browning says he was never asked.

Either way, Ricky steps in the ring with Browning without a lawyer.

Did Ricky need special protection during the grilling?

Browning assesses it this way: "Of course I put pressure on him, but God forbid that I put so much pressure on an innocent person that he would confess as the best option. It's too much of a leap. You've almost got to think you've got a retarded person."

Ricky's IQ was 71, one point above the borderline of mild mental retardation.